A bailiff affidavit has no probative value if the investigation was not technically sound

A decision of the Paris Court of Appeal on 17 November 2006 regarding the conduct of a bailiff’s investigation could be relevant to future trademark infringement litigation.

In this case, a company was offering ADSL subscription services under the trademark Netpratique. In 2003, it requested from a bailiff an affidavit officially noticing that when Googling its trademark, the results page would show an Adword that was leading to a competitor’s website offering the same services. In 2004, a new bailiff affidavit revealed that the trademark was used as an Adword on Google’s search engine by AOL France and Tiscali.

The claimant’s action brought against AOL France was dismissed by the first instance tribunal, and this judgment was confirmed by the Court of Appeal in November. The Court of Appeal followed the tribunal in considering that the affidavit established by the bailiff in order to prove the act of infringement on the internet was lacking probative value, as the bailiff did not dump the cache memory of his computer before carrying out his investigation and used a web connection with a proxy server while performing his investigation.

As a result of this judgment, claimants in infringement disputes must be mindful of these technicalities when having an affidavit drawn up by a bailiff, and should, as far as possible, have the bailiff assisted by an IT expert.